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Nov. 15 — A full U.S. Supreme Court bench is likely by the end of the current term, which ends
in June,
Reginald J. Brown, of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, told Bloomberg BNA Nov.
14.

There will likely be a flurry of activity in the Senate Judiciary Committee next year,
in stark contrast to the months of inaction on President Barack Obama’s high court
nominee Merrick Garland.

In March, GOP Senators vowed to hold up any Supreme Court nominee until after the
2016 presidential election.

Now that Donald Trump has won the presidency, Garland’s nomination is “dead in the
water,”
John G. Malcolm, of the conservative think tank The Heritage Foundation, Washington, told Bloomberg
BNA in a Nov. 14 e-mail.

Although President-elect Trump is likely to act quickly to nominate someone, how quickly
that person will actually take the bench depends on Senate Democrats, Malcolm said.

Machinery First

The Trump team will start thinking seriously about the next Supreme Court nominee
once the senior leadership of the White House and Department of Justice are in place,
Brown, who helped vet potential judicial nominees during the George W. Bush administration,
said.

A full Supreme Court bench is a high priority, but the new administration will want
to get the “machinery in place” first, Brown said.

That means deciding on an attorney general and other senior Justice Department officials,
who will shepherd the nominee through the confirmation process, he said.

After those officials are in place, the administration will likely move very quickly
to nominate someone, Brown said.

Exacting ‘Payback.’

That nominee is likely to be one of the
21 candidates that Trump identified during his campaign, Malcolm, whose organization
advised the Trump campaign, said.

“Twenty of the 21 names on President-Elect Trump’s list are sitting judges who have
already been vetted, which hopefully will expedite the process of sending a nomination
to the Senate for confirmation,” Malcolm said.

But that really depends on Senate Democrats, he said.

It really comes down to “who President Trump nominates and what kind of ‘payback’
the Democrats decide to exact for having lost the election and for the Senate’s having
held up the Merrick Garland nomination,” Malcolm said.

If Democrats attempt to filibuster Trump’s nominee, there will likely be a “robust
discussion about whether the Republicans will extend the nuclear option,” he said.
Malcolm was referring to the Democrats’ elimination of the filibuster for lower court
nominees in 2013.

Before the election, “when the Democrats were confident that they were going to win
the White House and take control of the Senate,” Senate Minority Leader Harry Reid
(D-Nev.)
and Sens. Charles E. Schumer (D-N.Y.) and Tim Kaine (D-Va.), the vice presidential
nominee, “were telegraphing that they would have no hesitation about extending the
nuclear option to Supreme Court nominees if a Republican minority attempted to filibuster
whomever President Clinton nominated,” Malcolm said.

“Now the shoe is on the other foot,”
he said.

Looking at 2018

But it isn’t a given that Democrats will put up a fight over the next high court seat,
Brown said.

Senate Democrats have a tough election coming up in 2018, with a number of Democrats
facing re-election in traditionally “red states,” he said.

Because the Supreme Court has been conservative-leaning for many years, this nomination
likely won’t change the status quo, Brown said.

So Democrats may not want to block this nomination, and instead wait for the next
vacancy, he said.

Notably, three current justices are in their late 70s or early 80s—center-right Justice
Anthony M. Kennedy, liberal icon Justice Ruth Bader Ginsburg and left-leaning Justice
Stephen G. Breyer.

Eight-Member Court

Regardless of how quickly the president-elect and the Senate acts, “the earliest we’ll
likely see someone confirmed to fill the vacancy is the spring,” Brianne Gorod, of
the progressive think tank Constitutional Accountability Center in Washington, told
Bloomberg BNA in a Nov. 14 e-mail.

That means “most, if not all, of this term’s cases will have been argued before the
vacancy is filled,”
she said.

Because the court’s “practice has been that Justices do not participate in cases that
were argued before they joined the Court,” that also means that “most, if not all,
of this term’s cases will be decided by an eight-Justice Court,” she said.

It’s possible that the court might hold off argument in cases that would otherwise
have been evenly split, Gorod said.

The court has already informally held
three cases that could divide the eight-member court.

Fundamental Change?

Some cases might disappear from the court’s docket altogether.

One of the three informally held cases might settle as a result of
election results in Missouri. That case,
Trinity Lutheran Church of Columbia, Inc. v. Pauley, U.S., No. 15-577, review granted
1/15/16
, deals with the relationship between church and state.

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